The “Good Faith” Dodge: Moving From Torture to Business?

One short phrase in an article bmaz alerted me to yesterday set my blood to boiling.  I fumed about it off and on through the rest of the day and even found myself going back to thinking about it when I should have been drifting off to sleep.

The phrase?  “Good faith”

Here’s the phrase in the context of the article:

The U.S. Justice Department’s stepped up enforcement in the pharmaceutical industry has struck “the fear of God” in executives, a top lawyer at GlaxoSmithKline said today, addressing whether prosecutors have gone too far in building cases rooted in business conduct.


The panel’s moderator, Jonathan Rosen, a white-collar defense partner in the Washington office of Shook, Hardy & Bacon, described what he called a “highly aggressive” enforcement environment.

Rosen posed questions to the panel members to explore the extent to which the government is criminalizing good-faith business decisions.

So, why would the longer phrase “criminalizing good-faith business decisions” set me off so? When I read that phrase, my mind flashed back to April, 2009 and the release of the torture memos.  Here is Eric Holder, as quoted by ABC News:

“Those intelligence community officials who acted reasonably and in good faith and in reliance on Department of Justice opinions are not going to be prosecuted,” he told members of a House Appropriations Subcommittee, reaffirming the White House sentiment. “It would not be fair, in my view, to bring such prosecutions.”

But Holder left open the door to some legal action, saying that though he “will not permit the criminalization of policy differences,” he is responsible as attorney general to enforce the law.

Uh-oh.  Now it’s even worse.  See the additional parallel?  Holder decried the “criminalization of policy differences” at the same time he said he wouldn’t prosecute those who acted in “good faith” on the torture memos.  The “good faith” in the business article above was smack in the middle of “criminalizing” “business decisions”. Read more

Why Isn’t the Federal Government Treating the Maine OWS Attack as WMD Terrorism?

Mohamed Osman Mohamud’s alleged terrorist act was to take an inert bomb constructed by the FBI and attempt to detonate it in Portland, OR’s Courthouse Square; had he succeeded, a bomb would have gone off in a public space full of people and, possibly (as prosecution filings later emphasized), damaged the nearby federal courthouse as well.

Najibullah Zazi’s crime was to take common chemicals found in any kitchen or bathroom–acetone and hydrogen peroxide–in hopes of turning them into an explosive to deploy on NY’s subways.

On Sunday morning, someone threw a bottle containing household cleaning solvents–not dissimilar from Zazi’s raw materials–into the public square occupied by Occupy Maine. Like Courthouse Square in Portland, OR, Lincoln Park, in Portland ME, is within blocks of the federal courthouse. Mohamud’s target, like that of the unknown bomber in ME, was a square full of people. And in ME–unlike OR–that crowd of people was engaging in political speech.

In other words, the attack in ME–even if it was as pathetic as Mohamud’s alleged attack or that of any number of aspirational Muslim terrorists–was an attempt to use a WMD, since explosives qualify as a WMD. And even more than Mohamud’s alleged attack, this was an attempt to achieve political ends through violence. Terrorism.

And yet, according to anonymous police sources, the Feds don’t think any federal laws were violated when this unknown bomber engaged in WMD terrorism.

Federal investigators have been contacted, but as of Monday the incident did not appear to have violated any federal laws, police said.


The city contacted federal authorities, including the Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Attorney for Maine.

The ATF said such devices do not violate federal law because they are less dangerous than more powerful explosives, such as dynamite or black powder, and don’t throw shrapnel as a pipe bomb would.

Police would have to determine the motive of the person who threw the device to decide whether civil rights or other federal charges are warranted. That would bring the U.S. Attorney’s Office into the investigation. [my emphasis]

This, in spite of the fact that the people in the car yelled “get a job” before throwing the bomb.

Don’t get me wrong. I don’t think this attack equates to real terrorism, the kind of attack that Abdulmutallab tried or even that Faisal Shahzad tried. Nevertheless, it does equate to a lot of things the FBI has called attempted use of a WMD and terrorism.

And yet, somehow, in the absence of a young Muslim man goaded on and provided explosives by the FBI itself, the FBI doesn’t see it as terrorism.

America’s Privatized Repression

Corey Robin has an important post on America’s privatized repression. He starts by describing how, after watching a panel on Occupy Wall Street in which she appeared, the freelancer who got arrested while she was covering the Brooklyn Bridge arrests lost her relationship with the NYT.

Two Fridays ago, I attended an excellent panel discussion on Occupy Wall Street sponsored by Jacobin magazine. It featured Doug Henwood and Jodi Dean—representing a more state-centered, socialist-style left—and Malcolm Harris and Natasha Lennard, representing a more anarchist-inflected left.

Lennard is a freelance writer who’s been covering the OWS story for the New York Times. After a video of the panel was brought to the Times‘s attention, the paper reviewed it as well as Lennard’s reporting and decided to take her off the OWS beat.  Despite the fact, according to a spokeswoman for the Times, that “we have reviewed the past stories to which she contributed and have not found any reasons for concern over that reporting.”

Even more troubling, Lennard may not be hired by the Times again at all. Says the spokeswoman: “This freelancer, Natasha Lennard, has not been involved in our coverage of Occupy Wall Street in recent days, and we have no plans to use her for future coverage.”

Robin goes on to note that this kind of repression–and not outright government repression–is really the core of social control in this country.

Such political motivated firings fit into a much broader pattern in American history that— in my first book Fear: The History of a Political IdeaI call “Fear, American Style.” While people on the left and the right often focus on state repression—coercion and intimidation that comes from and is wielded by the government (politically driven prosecution and punishment, police violence, and the like)—the fact is that a great deal of political repression happens in civil society, outside the state.  More specifically, in the workplace.

Think about McCarthyism. We all remember the McCarthy hearings in the Senate, the Rosenbergs, HUAC, and so on. All of these incidents involve the state. But guess how many people ever went to prison for their political beliefs during the McCarthy era? Less than 200 people. In the grand scheme of things, not a lot. Guess how many workers were investigated or subjected to surveillance for their beliefs?  One to two out of every five. And while we don’t have exact statistics on how many of those workers were fired, it was somewhere between 10 and 15 thousand.

There’s a reason so much of American repression is executed not by the state but by the private sector: the government is subject to constitutional and legal restraints, however imperfect and patchy they may be. But an employer is not.

Now Robin lays out this argument in the context of frustrations that anarchists and libertarians don’t get this.

In the last few months, I’ve had a fair number of arguments with both libertarians and anarchists about the state. What neither crew seems to get is what our most acute observers have long understood about the American scene: however much coercive power the state wields–and it’s considerable—it’s not, in the end, where and how many, perhaps even most, people in the United States have historically experienced the raw end of politically repressive power. Even force and violence: just think of black slaves and their descendants, confronting slaveholders, overseers, slave catchers, Klansmen, chain gangs, and more; or women confronting the violence of their husbands and supervisors; or workers confronting the Pinkertons and other private armies of capital.

It’s an important point, particularly as you distinguish between the Tea Party and Occupy Wall Street. The former, because it emphasizes the oppression of government power, will tend to increase oppression in this country as it ultimately helps the Koch brothers accrue more power. Which is undoubtedly why big corporations have funded it. Whereas the latter–to the extent that it focuses on banksters–points to the real source of power in this country.

But Robin’s point is important for another reason.

Private repression–as opposed to force, the actual physical violence Robin describes at the end–depends on integration into the system. Not only does it depend on the plausibility that someone can get a job in this economy–which, for some people, is not plausible. But it increasingly depends on integration in some dominant areas of the economy, banking with Bank of America, for example, as opposed to a local bank that has itself been screwed by the government’s determination to help the big banks at the expense of the local banks.

Because the concentrated centers of power in this country have gotten so removed from any accountability to the people they’re looting, it increases the possibility that people can opt out of the system that is key to enforcing their compliance.

Ray Kelly Vs. Minimal Oversight


In the AP’s first report on the NYPD’s CIA-on-the-Hudson, they quoted City Councilmen Peter Vallone reassuring that his private conversations with Ray Kelly were adequate oversight.

“Ray Kelly briefs me privately on certain subjects that should not be discussed in public,” said City Councilman Peter Vallone. “We’ve discussed in person how they investigate certain groups they suspect have terrorist sympathizers or have terrorist suspects.”

A month and a half of damning new revelations later, Vallone is not so sure.

Peter Vallone, the chairman of the council’s Public Safety Committee, said the council doesn’t have the power to subpoena the NYPD for its intelligence records. And even if it did, he said the operations are too sophisticated for city officials to effectively oversee. More oversight is likely needed, he said, perhaps from the federal government.

“That portion of the police department’s work should probably be looked at by a federal monitor,” he said after Police Commissioner Raymond Kelly testified Thursday at City Hall.

But Kelly–whose cops are being filmed on an increasingly frequent basis beating and pepper spraying peaceful protestors–likes it just fine with no oversight.

Kelly told council members that the department’s internal accountability was rigorous and ensured that civil rights were being protected. And he said everything the department does is in line with court rules, known as the Handschu guidelines, that limit how and why police can collect intelligence before there’s evidence of a crime.

“The value we place on privacy rights and other constitutional protections is part of what motivates the work of counterterrorism,” he said. “It would be counterproductive in the extreme if we violated those freedoms in the course of our work to defend New York.”


“The AP stories make it hard to believe we’re getting the balance right,” said Brad Lander, a Brooklyn councilman.

“That’s your opinion,” Kelly said. “We’re following the Handschu guidelines.”

With regard to Kelly’s racial profiling program (as opposed to the overreaction to Occupy Wall Street), it’s not actually clear who, with City Council abdicating their oversight role, can perform that oversight. The AP notes that the Obama Administration and Congress aren’t in a rush to exercise oversight over the CIA-on-the-Hudson either.

Which is precisely how Ray Kelly gets away with doing what he’s doing.

Taking Back Wall Street Trash Talk

Well we are a little late getting started on the trash talk this weekend, I apologize about that. I have been fixated on the Anwar Awlaki scenario and, today, the Occupy Wall Street effort. In honor of the citizens trying to take back the Street in New York, this week’s music is by Jimmy Cliff; you can get it if you really want it. But, you must actually try.

That, folks, is what is meant by the term “a democracy, if you can keep it”. The people still have the power, the people still have the vote; but they must have the information, and they must have the desire to exercise their power. Our friends and colleagues at FDL, via Kevin Gosztola, are doing great work covering the protests. And, if you have seen what I have on Twitter, it really appears to be something significant starting to form in the Big Apple. I am told about 400 people have been arrested; let’s hope they are replaced by 4,000 others.

Quite frankly it is a rather lackluster day in college football, the only 2 games I really had my eye on are Nebraska at Wisconsin, and 13th ranked Clemson at 11th ranked Virginia Tech. The Clemson game is already over, with the Tigers laying an unheard of whipping on Frank Beamer and the Hokies in Blacksburg. Not so for the Badgers however, the Cornfuckers are in Camp Randall right now with the Huskers up by a point 14-13. The rest of the game should be something fun, and the quarterback for Wisconsin, Russell wilson is really a special kid.

On the pro end of things, it is really not a very enticing slate of games on tap. Seriously there are like three games worth watching. The first is the Stillers at the Texans. Normally, this would be an easy call; but Pittsburgh has not settled in yet this season, and Houston has a fine team and is at home. That is a pickem. The second decent tilt, and maybe my most anticipated game, is Deetroit at Dallas. The Kittehs are THE hot team this year, and Suh is gonna be Romo rib hunting. But the ‘Boys are a little tougher than people think, and are at the JerryDome. I am leery of this, but am still going to go with the Lions. The other game tomorrow of interest is the Pats at the Black Hole to visit those nice Raider chaps. Darren McFadden got a bit nicked up in his huge day against the Jets, Jets, Jets last week, but looks good to go tomorrow. Marcy smells a Rayduhs upset here. So do I. Honorable mention to the Jets versus Ravens on NBC’s Sunday Night Football. It’s in Baltimore, gonna go with the home team there.

Lastly, it is October baby. Reggie Jackson time! and playoff baseball is in full swing. Unless the game is at Yankee Stadium, in which case it is in full swim. Tampa Bay just clocked the Rangers behind 22 year old rookie sensation Matt Moore to open the series, but Texas is up 7-3 in the 7th inning tonight. Oops, Eva Longoria just hit a three run tater to bring it to 7-6. Rays are like butter. On a roll. Diamondbacks got freaking smoked by the BrewCrew today in game one of the NLDS. Arizona has the youngest team in baseball and has been on a great run this year, but still may be a year and another starting pitcher away from being serious contenders. Never count out Kirk Gibson though, and the DBacks are Gibby’s team through and through.

Is Democracy the Problem, or Money-Corrupted Governance?

I’ve been pondering this NYT story–which is presented as news yet which in fact is analysis attempting to provide a general explanation for protests in democracies–since it came out. Its general explanation for why so many people are protesting is that people–primarily youth–have grown disillusioned with voting.

Hundreds of thousands of disillusioned Indians cheer a rural activist on a hunger strike. Israel reels before the largest street demonstrations in its history. Enraged young people in Spain and Greece take over public squares across their countries.

Their complaints range from corruption to lack of affordable housing and joblessness, common grievances the world over. But from South Asia to the heartland of Europe and now even to Wall Street, these protesters share something else: wariness, even contempt, toward traditional politicians and the democratic political process they preside over.

They are taking to the streets, in part, because they have little faith in the ballot box.

Note, the title of the article (which presumably the authors didn’t write) refers to a “scorn for vote,” but even this last sentence focuses on the ballot box, rather than the system the ballot box supports. The article doesn’t offer any polling to show this generation (or even just protest participants) are objecting to voting, per se, nor does it question why the record number of youth who came out to vote in the US in 2008 are now among those occupying Wall Street. Rather, it offers these quotes from a protest participants.

“Our parents are grateful because they’re voting,” said Marta Solanas, 27, referring to older Spaniards’ decades spent under the Franco dictatorship. “We’re the first generation to say that voting is worthless.”


“We elect the people’s representatives so they can solve our problems,” said Sarita Singh, 25, among the thousands who gathered each day at Ramlila Maidan, where monsoon rains turned the grounds to mud but protesters waved Indian flags and sang patriotic songs.

“But that is not actually happening. Corruption is ruling our country.”


Mr. Levi, born on Degania, Israel’s first kibbutz, said the protests were not acts of anger but of reclamation, of a society hijacked by a class known in Hebrew as “hon veshilton,” meaning a nexus of money and politics. The rise of market forces produced a sense of public disengagement, he said, a feeling that the job of a citizen was limited to occasional trips to the polling places to vote.

“The political system has abandoned its citizens,” Mr. Levi said. “We have lost a sense of responsibility for one another.”

All three of these speakers are talking about something more than democracy. They’re talking about democracy that has been delegitimized by its insulation from voters; two specify that corruption is the culprit.

In other words, the article claims to report something about protestors’ attitude towards democracy, while mostly downplaying the role that money has had in the failed governance that results from that democracy, though the protests focus on the latter.

The authors fail to distinguish between democracy and capitalism in other ways, too. In one case, for example, they use a quote talking about capitalism to support a claim they make about voting.

Frustrated voters are not agitating for a dictator to take over. But they say they do not know where to turn at a time when political choices of the cold war era seem hollow. “Even when capitalism fell into its worst crisis since the 1920s there was no viable alternative vision,” said the British left-wing author Owen Jones. [my emphasis]

And while they say, “the protest movements in democracies are not altogether unlike those that have rocked authoritarian governments this year,” they only examine the technological similarities, the reliance on social media in both. They don’t bother to consider the commonality between Tunisians demanding jobs, Israelis demanding affordable housing, Europeans fighting austerity or (in the case of London’s riots) for some kind of future. And while they link to news on Occupy Wall Street, they don’t even mention Wisconsin, perhaps because the involvement of unions and middle class teachers would spoil their desired narrative, which claims protestors are also bypassing unions.

A globalized economy has presented similar problems leading to similar protests in democracies and authoritarian regimes alike, but the NYT’s reporters want to claim this is about democracy and not economics.

All of which builds to their judgment, one terribly sourced paragraph spinning these protests as a profoundly undemocratic movement.

While the Spanish and Israeli demonstrations were peaceful, critics have raised concerns over the urge to bypass representative institutions. In India, Mr. Hazare’s crusade to “fast unto death” unless Parliament enacted his anticorruption law struck some supporters as self-sacrifice. Many opponents viewed his tactics as undemocratic blackmail. [my emphasis]

“Critics have raised,” “many opponents viewed.” None of them named or quoted in the article, but all critically deployed to interpret the evidence the reporters set forth as being primarily about democracy and not about so-called capitalism (otherwise known as elite looting).

For the record, I do believe there’s commonality among these protests. Not just the ones the authors puzzle through in Israel, India, and Europe, but also those in Madison, Wall Street, Egypt, and Tunisia. I do believe it’s worth reflecting on this commonality. But I find it telling that an article published in the most elite news institution and complaining that, “protesters have created their own political space online that is chilly, sometimes openly hostile, toward traditional institutions of the elite,” interprets the commonality here as a rejection of democracy, not a rejection of elite looting.

A List of Food Trucks That Will Take Orders for #OccupyWallStreet Protesters

Someone down at Occupy Wall Street noted that a bunch of food trucks are gathering around the protest. Four of them would be able to take orders for the protesters. So if you want to feed those trying to hold the banksters accountable, call one of these food trucks.

Lemongrass Grill – Thai – 212.809.8038

Alfanoose – Middle Eastern – 212.528.4669

Toloache Taqueria – 212.809.9800

Liberatos Pizza – 212.344.3464

The Name of NYPD Brutality: Anthony Bologna


The Lieutenant Deputy Inspector who pepper-sprayed a kettled, defenseless woman has been identified as Anthony Bologna. He was IDed, in part, by a lawyer representing one of the people Bologna improperly arrested during the 2004 RNC.

The Guardian has learned that the officer, named by activists as deputy inspector Anthony Bologna, stands accused of false arrest and civil rights violations in a claim brought by a protester involved in the 2004 demonstrations at the Republican national convention.


Alan Levine, a civil rights lawyer representing Post A Posr, a protester at the 2004 event, told the Guardian that he filed an action against Bologna and another officer, Tulio Camejo, in 2007. The case, filed at the New York Southern District Court, is expected to be heard next year.


The lawyer said Posr was arrested on 31 August 2004, after he approached the driver of a Volkswagen festooned with anti-abortion slogans.


Levine said: “Police contend that Posr hit the man with a rolled-up newspaper. He said he was just talking to the guy. Bologna ordered another officer, Camejo, to arrest Posr.”

Posr was charged with two counts of disorderly conduct and one count of second degree harassment, and held until September 2. On November 8, all charges against him were dropped.

Levine said that, in a departure from normal police procedure, his client was held in a special detention facility, at Pier 57, where he and others arrested were held until the protests were over.

It sounds like this guy is using his badge to legally and physically abuse people whose politics he disagrees with–someone politically debating choice in 2004 and a woman opposing MOTU power this weekend.

I don’t expect Ray Kelly to do anything about such an abusive officer on his staff (in any case, the union would presumably defend Bologna if Kelly tried to fire him). But so long as he remains on the force, we have a name and a face to personify the NYPD’s brutality: Anthony Bologna.

Update: Bologna’s rank fixed. One of the women who got partly sprayed by him apparently incorrectly used that rank. h/t Cynthia Kouril.

If the NYPD Maces the First Amendment, What Will They Do with Anti-Aircraft Weapons?

The NYPD made the news yesterday twice.

First, for their over-reaction to the Occupy Wall Street protests. In the video above, street cops corral some women with orange mesh, so another cop–in the white shirt–could mace them.

As the NYPD was bullying people for exercising their First Amendment rights, Commissioner Ray Kelly was on 60 Minutes. He started by confirming he was the boss of all 50,000 people the NYPD had working for it (more than the FBI, 60 Minutes helpfully notes).

Pelley: You call it a hierarchical kind of organization. In other words, you’re the boss.

Kelly: That’s correct. That’s the way it works here.

Pelley: And you’ve got 50,000 people working for you.

Kelly: 35,000 uniformed police officers, 15,000 civilian employees. That’s correct.

Kelly went on to boast that the NYPD had the ability to take down a plane.

Pelley: Are you satisfied that you’ve dealt with threats from aircraft, even light planes, model planes, that kind of thing?

Kelly: Well, it’s something that’s on our radar screen. I mean in an extreme situation, you would have some means to take down a plane.

Pelley: Do you mean to say that the NYPD has the means to take down an aircraft?

Kelly: Yes, I prefer not to get into the details but obviously this would be in a very extreme situation.

Pelley: You have the equipment and the training.

Kelly: Yes.

Since Ray Kelly is “the boss” here, I assume he owns the over-reaction to Occupy Wall Street as much as he owns missing Najibullah Zazi and his Imam, who was an NYPD informant. Presumably, too, that means the guys trained to use anti-aircraft weapons have the same itchy trigger finger as the cop shooting mace in the video above.

The visible face of the NYPD–cops macing women in pens–offers reason enough to question the discipline and judgment of at least the supervisors running the department. Yet there’s a secret face of the NYPD, one that spies on Americans and, apparently, trains to shoot down planes, too. Given what we see in the visible face of the NYPD, how can we trust the invisible face to have anti-aircraft weapons?